Avoiding Legal Problems When Hiring Household Staff

Apr 12, 2017

The hiring process is complicated enough as it is without the additional burden of having to worry about whether potential employees are even eligible to work in the United States. The Immigration Reform and Control Act (IRCA) requires that employers may only hire employees who are authorized to work in the United States. Under this legislation, employers and potential employees must fill out the Employment Eligibility Verification Form, known as the I-9 Form, proving that individuals are legally able to work in this country. To make this process a bit less stressful and more comprehensive, here are useful tips to make sure you are hiring and retaining employees authorized to work in the United States.

Complete the I-9 Form with an employee once he or she is officially hired, not before an offer is given. This will help you avoid excess paperwork for applicants that do not make the cut and, more importantly, help you eliminate any claims that individuals were not hired based on their national origin or age (both are required on the I-9 Form).

Make filling out the I-9 Form part of every employee’s first day on the job. If an employee is not able to provide the proper documentation to complete the form within three days, he or she must provide a receipt indicating that he or she has applied for an authorizing document. The employer should retain this receipt for its records. From that point on, the employee has 90 days to provide the actual document to fully complete the form.When filling out the I-9 form with only a receipt, write the word “receipt” under “Document Title” in Section 2. Once the employee provides the actual document, cross out the word “receipt” and insert the information concerning the document, initial the changes and write down the date the changes were made.

If an employer hires someone to work for fewer than three days, the I-9 Form must be completed before the employee’s first day on the job.

Employees are able to provide any document or combination of documents from Lists A, B and C of IRCA. The employer cannot specify which documents will be accepted to complete the I-9 Form.

I-9 Forms are not necessary for employees hired before Nov. 6, 1986.

I-9 Forms are not necessary for independent contractors, individuals employed by an independent contractor or people who are self-employed.

It is illegal for an employer to knowingly hire individuals who cannot legally work in the United States.

When completing the I-9 Form, employers must do the following:

Record the verification document title from List A or record one verification document from List B and one from List C

Record the name of the issuer of the document (example: Social Security Administration)

Record the document identification number and the expiration date (if applicable)

Record the employee’s first day of employment

Sign and date the certification section and also provide the job title of the employer or representative signing the document, the name of the business and the address.

If or when an employee’s authorizing documentation expires, the employer must reverify the employee’s employment eligibility before or on the expiration date. To keep information up to date, employers should fill in Section 3 of the I-9 Form or use a new form if Section 3 is already completed. If the employee is unable to produce documentation outlining that he or she can remain working, the employee cannot remain employed. There is one exception to this rule: If an employee’s green card expires, he or she is still authorized to work in the United States because his or her employment authorization status is permanent. (However, an expired green card is not considered an authorized document when the individual is first being hired.)

Urge employees to apply for new work authorization at least 90 days prior to the current documentation’s expiration date, since obtaining these documents can sometimes be a slow process.

Design a reminder system so employees with only a receipt are not forgotten about and authorization documents do not expire without obtaining new documents.

Reverify authorization for employees upon rehiring by filling out Section 3 of the I-9 Form.

When reverifying an employee’s authorization, the employer should:

Record the date of rehire

Record the document title, document number and expiration date (if applicable)

Sign and date Section 3

If using a new I-9 Form, record the employee’s name in Section 1

Complete a new I-9 Form for rehires who have not been with the company for three years or more.

Record employee name changes that occur after he or she completes the I-9 Form by crossing through the old name, writing down the new name, reason for the change (example: marriage), date and initials of the company representative who made the change. Do not delete or erase the old name.

If you discover that an employee’s Social Security number used to fill out the I-9 Form (found on List C) is invalid or mismatched from the Social Security Administration (SSA), contact the employee immediately. Ask that he or she present other authorizing documentation from List C or List A, and also urge him or her to contact SSA to rectify the problem.

Keep I-9 Forms in a folder (electronic or paper format) labeled “I-9 Forms”, instead of in personnel files. The information on these forms should in no way affect hiring, termination, transferring or other employment actions and therefore should not be placed in a personnel file.

Employers have three days to present requested I-9 Forms to a U.S. Citizenship and Immigration Services (USCIS) or Department of Labor (DOL) agent for an audit.

There are two Internet verification options you can use to verify that your employee names and Social Security numbers match Social Security’s records. You can:

Verify up to 10 names and SSNs (per screen) online and receive immediate results. This option is ideal to verify new hires.

Upload overnight files of up to 250,000 names and SSNs and usually receive results the next government business day. This option is ideal if you want to verify an entire payroll database or if you hire a large number of employees at a time.Employers should establish a policy of verifying either all employees’ Social Security numbers or none at all to avoid discrimination claims.

Participate in the SSA’s and USCIS’ joint E-Verify program, formerly known as the Basic Pilot Program, to authorize employee Social Security numbers quickly and easily. To participate, log onto https://e-verify.uscis.gov/enroll. On the site, employers can complete the I-9 Form and then submit it to an SSA database for review. If SSA does not have enough information to validate the form, they send it directly to USCIS for further review. If more information is still required, USCIS will send a message to the employer requesting that the employee contact SSA or USCIS to provide the necessary information. To learn more about E-Verify, visit http://www.uscis.gov/e-verify or call 1-888-464-4218.